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Closing documents CITY OF MIAMI BEACH OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: Robert Parcher City Clerk FROM: Raul J. A9Uil~c... First Assistant City Attorney SUBJECT: Transfer/Sale of Leasehold Interest of Agreement of Lease between the City of Miami Beach, Florida (City and/or Owner) and Pelican Development, L.L.c. (Pelican and/or Tenant), dated December 1, 1999, to Ocean Blvd. II, LLC (Ocean Blvd.) DATE: September 20, 2004 Bob: Enclosed herewith are the closing documents relative to the above-referenced Transfer/Sale. --=", ---~.' ::h _.,_~_~"C " . .~_..._,-- Lqq ., ~ .. , ~' .. . A PROFESSIONAL LAW CQRPORATION 3421 N. CAUSEWAY BLVD. SUITE 707 METAUUE, LOUESIANA 70002 TEl,.: (SG4) 838-9090 FAX: (504) 838-9187 October 4., ~999 COVINOTON OFFICE: SUITE 303, I 06 PARK PLAcE COVINGTON, LA 70433 TEL: (504) 867-3330 FAX: (SG4) 867-3338 Florida Secretary of ,State Division of. Corporations P. O. Box 6327 _..,--- Tallahassee, FL 32314 Re: Pelican Development, L.L.C. Our File: 99-06~S3 200003011892--9 " -10111/99--01121--004 ****125.00 ****125.00 Dear Clerk: Enclosed for filing, please find an original and one (1) copy each of the following documents for the above mentioned limited liability company: ' , , ..-. ,. , . ' .. ..--"- 1. 1trticJ.es of organization; 2. Affidavit of, Acknowledgment of AcCeptance of Appointment by Designat~d Registered AfJent; and 3. .Initial Report of Pelican Development, L.L.C. Please file these documents into your records and return a stamped copy to the, undersigned in the enclosed, self-addressed, stamped envelope. We 'are enclosing our check _ 'in the amount of .. $125.00 t~ cover the costs incurred. . . - --. .-..-.-- .-..-. \ sincerely, ':FFECT1VE DATE lQ-lt -41 :::::!<n co Fm co .....0 !:~ ~ >~ -4 c...-::~ ~-: rne . -n ;!J,." ~ ".>.... - ::!~ ISJ Cl rn z:- ;po z:- ...,., - r' rrt O' Enclosures (j)7gq I DZ831 J lXJZ4jrtlP11 ~ 17;2/aOJ . 'Co , '\ .. u ( FLORIDA DEPARTMENT OF STATE : . Katherine Harris Secretary of State October 14, 1999 DINA L LEWIS DWYER & CAMBRE 3421 N. CAUSEWAY BLVD., STE. 707 METAIRIE, LA 70002 SUBJECT: PELICAN DEVELOPMENT, L.L.C. Ref. Number: W99000023699 We have received your document for PELICAN DEVELOPMENT, L.L.C. and your check(s) totaling $125.00. However, the enclosed document has not been filed and is being retumed for the following correction(s): The enclosed document(s) does/do not meet our filing requirements. Therefore, we are enclosing our appropriate fonn(s) anellor instructions. The effective date cannot be more than five business days prior to the date of filing. Please return your document, along with a copy of this letter, within 60 days or your filing will be considered abandoned. , If you have any questions concerning the filing of your document, please call (850) 487-6025. Trevor Brumbley Document Specialist Letter Number: 399AOO049561 ... :::..c., co ;:::~ co ~::l;7 s!!l ~ U);t.. -. (/') :!O' rn -<: .f7J 0 -n'"T'l ~ ~~ ~ ..0:> N o~ .. :::..fTi ~ ~ Division of Corporations - P.O. BOX 6327 -Tallahassee, Florida 32314 I i '"77 - r- 1i7 o .. .. 1 , i ',~ ( '- .. ARTICLES OF ORGANJ:ZATION OF PELICAN DEVELOPMENT, L.L.C. A Florida Limited Liability Comp~y 1. NAME' - The. name of the limited liability company organized pursuant to these articles of Organization shall be: ..:.. .. ... '. -":;'r".' - PELICAN DEVELOPMENT, L.L.C. 2. ADDRESS Themailingaddressan~.~J:reetasldress..C?f...th~ principal-office no of the Limited Liability Company shall be:..601'poydras Street, Suite 2011, New Orleans, LOuisiana 70130. ' - 3. REGISTERED AGENT, REGISTERED 'OFFICE, &' . REGISTERED AGENT'S SIGNATURE The name and ,Florida street 'address of the. registered agent are: Chapman Ducote 90.Alton Road, Suite 1911 Miami Beach, Florida 3313.a._.- .~ . --.-- Having'been named as register~ agent and to accept service Qf process for the above stated limited liabi:lity company at -the place designated in this certificate, r hereby accept the appointment as registere4 agent. ancl" agree to ,.aq.t :i,n ~is ciEtpacJty.. ;!;,. ~\lrther agre.e ., to comply with the provisions of:al.l statues relating to the proper and compl~te perfprmance,.of:my auties, and I am fallii.liar with and accept ,the obligations of .my posItions ,a~.:~registered agent as provj,deQ.. .f;or in ~pter,- 6.Q,~, ? ~. . - -'. ;_.. '., -- ; :'7 - -:--: ... . r" Si,gnature' ;;: r-<-9 Co f:fJ Co jfrT7 .~ ~;:-~ ...... r,,,:::t) . - .' I rr, --< -- -- .f"Tl <:> _. r-- ~'"rr no. 7'-'., :-0 ' 'S ';';0' ~ ~ .:<:/;: - '-I e;:;,'~ ~.-&:-- -l:- 4. , t ,~ f , , I j The Limited Liability Company is, tp., be,_~~~ged by more than one manager and is, therefore, a manager-managed_,C6\!IP~y.: 5~-"-~'-~ The undersigned, acting as the organi~er of a limited liability company ~der Chapter 608, 'Flor'ida Statutes, does hereby form, effective October 6, J.999,' a 'limited liability company, under such law, and for such purposes, dOes hereby adopt ~ ,following Articles of Organiza:tion: .. . . - . - --- ~~" (In accordance with section 608.408 (3) t Florida Statutes, execution of this document constitutes an- aff'i:rmation' unde:t: penalties ,of pe'rjury'that the ,facts stated herein ~re t~e:) Su2:e1te ()/Ar/J.Je ' Typed or .printed name of ,'si!:JIlee -! F:;m c:o r-~ c:o :;".::0 ....m Q >-f c-j (I)~ '-of en .::0 m-< .me:.., ...,.,"71 r-,,.", ~ :::>'-f - -0.3> N 6-'-< " ~m ~ ~ the the ."'et-.- ....,f.I:. ." - r- 177 (:5'- , c ACTION BY WRITTEN CONSENT OF THE MEMBERS OF PELICAN DEVELOPMENT, L.L.C. The undersigned, constituting all of the Members of Pelican Development, L.L.C., a Florida limited liability company (the "Company''), do hereby undertake the following actions and adopt the following resolutions by written consent in accordance with the Florida Limited Liability Company Act: BE IT RESOLVED-that the Company execute and deliver such docUments as arereqUired from the Company to sell and assign to Ocean Blvd II LLC, an Indiana limited liability company and/or its assigns ("Purchaser"), the Company's leasehold interest in and to that certain real property located in Miami Beach, Florida and more particularly described in Exhibit "A" attached hereto (the "Property") at a purchase price equal to $12,000,000 pursuant to that certain Purchase and Sale Agreement dated November 24, 2003, as amended; and BE IT FURTHER RESOLVED that GRA VIER DEVELOPMENT, L.L.C., as the Manager of the Company (the "Manager"), be and hereby is authorized and directed to negotiate the specific terms and conditions of the assignment and to execute and deliver on behalf of the Company such agreements, amendments to purchase and sale agreements, assignments, bills of sale, affidavits, closing statements and such other instruments and documents as may be necessary or required in order to consummate the assignment by the Company to the Purchaser, all of which shall contain such terms and conditions as said Manager shall determine to be in the best interest of the Company, with the signature of the Manager to be conclusive evidence of such determination and of the authority of said Manager to execute and deliver the same BE IT FURTHER RESOLVED that the Company hereby ratifies and confirms the acts of said Manager irrespective of whether such acts were performed prior or subsequent to the date of the adoption of the foregoing resolutions, in effectuating the purposes and intents of the foregoing resolutions and the transactions contemplated thereby. WE DO HEREBY FURTHER CERTIFY that the undersigned Members are the sole Members of the Company, that the foregoing resolutions have never been countennanded, rescinded, revoked or amended, and remain in full force and effect and that attached hereto as Exhibit "B" is a true copy of the Articles of Organization of the Company, that said Articles of Organization have not been further amended and that the Company has not been dissolved. WE DO HEREBY FURTHER CERTIFY, that the undersigned Manager has full right, power and authority to execute the documents necessary to assign the Company's leasehotd interest in the Property to the Purchaser pursuant to Article III of the Operating Agreement of the Company dated as of October 6,1999, and as amended on January 31, 2002 (collectively, the "Operating Agreement"), that attached hereto as Exhibit "C" is a true and correct copy of the Operating Agreement, and that the Operating Agreement has not been revoked or amended and remains in full force and effect. ( IN WITNESS WHEREOF, We have affixed our names in our capacities as the sole Members of the Company effective this ~ day of May, 2004. MEMBERS: Gravier Development, L.L.C., a Louisiana limited liability company BY:~ David L. Ducote, Manager By: ge Investments, L.L.C., a Louisiana liability company l EXHIBIT A [Legal Description] The North I foot of Lot ] I, and al] of Lots ]2, 13 and 14, Block 15, OCEAN BEACH ADDmON NO.2, according to the Plat thereof, recorded in Plat Book 2, Page 56, of the Public Records of Miami-Dade County, Florida. " '-- EXIllBIT B [Articles of Organization] ( '- EXlllBIT C [Operating Agreement] \\MIA-SRVO 1 II SS6277vOIlIFFPLO 1_.DOC\62S9S.01 01 00 " . OPERATING. AGREE:MENT FOR PELICAN DEVELOP:MENT, L.~.C. ( '-- I TABLE OF CONTENTS ARTICLE I INTRODUCI10N. .... ............. ....; u.~..;........ ...~.;.. ..;.;..... :~:.:;..; ..... ........'.....1 ..Section 1.1. Formation. ..~;..... .......... ......... .....; ............... ...:...... .... ".:-~...".. ...... .......1 . section 1.2 Name..... ........ ......................... ..... ............... ......... ..................... .:.1 section 1.3 Registered Office; Registered Agent; Principal Office; Other offices. .........1 Section 1.4 Defined Terms. .............................:...............................................1 . Section 1.5 Company Purpose. ...... ...... ....... ;................ ....... ........ ............... ......3,. . _. - -. ---- ARTICLE n MEMBERS, MEMBERSHIP INTERESTS............ ...~. .~..... ....~ ..................3 Section 2.1 Names, Addresses,. Initial Capital Contributions and Percentage Interest of Members. .................................................... ...............................3 Section 2.2 Form of Contn'bution. ...... ........ ... ........... .... ............ ............. ... ........4 Section 2.3 Men1berLoans or Services. .. .... ..... ... ......... ...: ..... ... .~-::. :... :.... .... ..... ...4 Section 2.4 Admission of Additional Members. .................. ..................................4 Section 2.5 Limitation on Liability. . ......... ................ .... ...... ..............................4 Section 2.6 No State Law Partnership.......... ....... ........ ...... ...... .:. ... ......... ........ ....4 ARTICLE ffiMANAGEMENT AND CON1ROL OF BUSINESS .................................5 Section 3.1 Overall Management Vested in Managers. ...........................................5 Section 3.2 Powers of the Managers. .... .......... ........... ...... ...... ........ ... ....... .........5 c~....:...._ ~ '2 T :..-.;.,....40.:".._ ,.,_ 1.A'...._..........-..-.._+ 0 .""""""....vu .J4-' ~LCLUVU VU .LT~"".&U"".I.I.I.. ...................................................................u Section 3.4 Manager Compensation. . .......... ..... ......... ........... ....... ........... ....... ...... 9 Section 3.5 Indemnification of Manager. .................... .... .....,.... ...... .... ... ......... ....9 .. Section 3.6 Indemnification of Members. ............................;............................10 section 3.7 Reimbursement of Expenses. .........................................................10 Section 3.8 Other Activities. '" '" ............ .... ... ................ ..... .......... ....... ........... 10 Section 3.9 Meetings of the Members.... ........... ............... ............ .......... .... ...... 11 ARTICLE IV ACCOUNTING AND RECORDS .....................................................12 Section 4.1 Records and Accounting. .... ............. ....... .............. ............. ...... ..... 12 Section 4.2 Access to Accounting Records. :...............................:.................. ..... 12 Section 4.3 Annual and Tax Information. ......................................................... 12 Section 4.4 Accounting Decisions. .. ..... ......... ............. ........ ..... ...... ...... ............ 12 section 4.5 Federal Income Tax Elections. ..:.....................................................12 . . ARTICLE V ALLOCATIONS; CAPITAL ACCOUNfS AND DISTRIBUTIONS............ 13 Section 5.1 Allocations...... :....................... .......... .... ...... .;....... .......... ........ .0" 13 Section 5.2 . Capital Accounts. .;.................. ........ ....... .... .0.............. ....... .............13 section 5.3, DiStributions. ............... ..... ................... ... ........... ............ ....... .::.. 14 ARTICLE VI CHANGES IN MEMBERS........................__.............:........................14 Section 6.1 Transfers of Interests.. .... ................. .... ......:... ......... .......... ............ 14 Section 6.2 Death, Interdiction, Withdrawal, etc. of a Member. .....................::-...... 14 i -. {N07ll8013:l} . ~{N0788013.11 ( ) Section 6.3 Sectirity Interest. .... ...;..:.~..... ....... ... ....... ...:..C::'j;...... .......... ..... ...;.'1$'" ,. Section 6.4 Rights of Assignee; Admission of Substitute Members; ......................H~I5 . ARTICLE VU DISSOLUTION. ........ .:................. ...............~:...;.........::;..... ..... ....?15. . Section 7.1 Events Causing Dissolution; ... ............. ............................ .... ... ......;15 Section 7 .2 Winding Up. ... ....................................... .....:.. ........... ........ ..... ....:.15 Section 7.3 Distribution of Assets. .................................................................16 Section 7.4 Distributions in Kind. ................... ...... .............. ...... :;..... ...............16 Section 7.5 Distributions........... ...........:....................:................................ .16 .- -- ARTICLE VIII MISCELLANEOUS.. .......... .............;......... ............... ...... .... ..... .... ..16 Section 8.1 Section 8.2 Section 8.3 Section 8.4 Section 8.5 Section 8.6 Section 8.7 Section 8.8 Section 8.9 Section 8.10 Section 8.11 SI:l.:UUD 8.12 Section 8.13 Section 8.14 Specific Performance. ...... ..... ... ..... ..... ........ .... ............ ............. ... ,.. 16 Complete Agreement. ...................... .......... ...... .................. .......... 17 Governing Law. ...... ...... ................. ........ ........;......... .............. .... 17 BindfugEffect. ........ ....... ..;......... ....,.... .-.:..:-.. .:.. ..:::..:::..:.:..~.:.: ...-: 17--- Terms. ................ ... ........ .......... ..................... ............. ........ ....... 17 Headings. ....:............................................................................ 17 Severability. ............... ..... ...................... ........ ........... ........... ...... 17 Multiple Counterparts. ..... ...................... .... ......................... ......... 18 Additional Documents and Acts. ............... ........... ........................... 18 No Third Party Beneficiary............. ........... .......................... .......... 18 References to this Ag:r-eement. ............ ........ ......... .... ........ ......... ...... 18 Nuul,;t:s. .. ............... ........ ........................................ ... ....... ........ 18 Amendments. ....... ...... ..... .......... .................... ......... ......... .......... 18 Title to Company Property. ......... .............. ....... .... .......... ...... ......... 19 if ( .;" . OPERATING AGREEMENT FOR, PELICAN DEVELOPMENT, L.L.C. Pelican Development. L.L.C., a Rorida Limited Liability Company', has been formed ' as descnbed hereinafter. The parties to this Operating Agreement ("Agreement") are the Members of 'pelican Development, L.L.C. The parties enter into this Operating Agreement as the binding agreement between the Members for all purposes permitted unda-EIorida law. Wherefore, the parties agree as follows: ARTICLE I INTRODUCTION Section 1.1 Formation. The Company has been organized as a Rorida Limited Liability Company by the filing of Articles of Organization (the" Articles") pursuant to the Act and the issuance of a certificate of organization for the Company by the Secretary of State of Rorida. Section 1.2 Name. The name of the Company is Pelican Development, L.L.C. and all Company business must be conducted in that name or such other names that comply with applicable law' as the Managers may select from time to time. Section 1.3 Registered Office; Registered Agent; Principal Office; Other Offices. The registered office of the Company required by the Act to be maintained in the State of Rorida shall be the office of the initial registered agent named in the Articles or such other office (which need not be a place of business of the Company) as the Managers may designate from time to time in the manner provided by law. The registered agent of the Company in the State of Rorida shall be the initial registered agent named in the Articles or such other person or persons as the Managers may designate from time to time in the m:nmer provided by law. The principal office of the Company sbalJ be at 90 AIton Road" Suite 1911, Miami. Rorida 33139, or such other place as the Managers may designate from time to time upon notice to the Members. The Company may have such other offices as the Managers may 1iesignate from time to time upon notice to the Members. Section 1.4 Defined Terms. The terms used in this Agreement with their initial letters capitalized. shall, unless the context otherwise requires or unless otherwise expressly provided herein, have the JDellnings , specified in this Section 1.4. The singular shall include the plural and the masCuline gender {N0788013.1 } {N07SaoI3.1} shall include the fe1TllTiine and Deuter, and vice versa;, as the contextrequires. this Agreement, the following terms shall have the meanings set forth below: "Act" shall mean the Florida Limited Liability Company Act, Fla. Stat.~Ch. 608.401 through 608.703, as ainended from time to time, and any successor statute. , "Agreed Value" shall mean the fair market value of Contributed Property as agreed to by the contributing Member and the Company, using such reasonable method of valuation as, they may adopt. "Agreement" shall mean this Operating Agreement, as originally executed' and as amended from time to time, and the terms "hereof," "hereto," "hereby" and "hereunder," when used with reference to this Agreement, refer to this Agreement as a whole, unless the context otherwise requires. "Assignee" shall meaD any person or Entity acquiring an Interest in the Company either by a Transfer governed by Section 6.1(a) or under Section 6.2. An Assignee is not a Member with reSpect to the acquired Interest and the rights of an Assignee are governed by Section 6.4. "Capital Account" shall mean the individual accounts established and maintained pursuant to Section 5.2 hereof and the provisions of Exhibit C attached hereto and made part hereof. .Capital Contribution" shall mean the Agreed Value (net of liabilities assumed or taken subject to) of property and the total amount of cash contributed to the Company by each Member, as shown in Exhibit A, as such :Exhibit may be amended from time to time. Any reference in this Agreement to the Capital Contribution of a then Member shall include a Capital Contribution previously made by any prior Member that is attributable to the interest of such then Member acquired from such prior Member, reduced by any prior distribution to such prior Member as a retul11 of Capital Contnbution that is attnbutable to the interest of such then 'Member acquired from such prior Member. "Code" shall mean the Internal Revenue Service Code of 1986, as amended. All references herein to sections of the Code shall include any corresponding provision or provisions of succeeding law. "Contnbuted Property" means each Member's interest in property or other consideration (excluding services and cash) contnbuted to the Company by su~~ Member. "Company" shall refer to this Pelican Development, L.L.C. "Entity" shall mean any association, corporation, general partnership, limited partnership, limited liability company, joint stock association, joint venture, fum" trust, business trust, cooperative, and foreign associations of like structure. "Fiscal Year" shall mean the calenctar year. ~: 2 (, -". .. ' " .. ":Interest" shall mean the entire ownership interest ofa Member in the Company at any particulat time, including all interest in profits, gains, losses. cash distributions andcapita1 and the right of such Member to any and all benefits and claims to which a Member may be entitled" as provided in this Agreement and under the Act, together with the obligationS of such Member to comply with all of the terms and provisions of this Agreement and the Ad. "Majority of the Members"' shall mean any Member or Members who individually or together own more than 50% of the Percentage Interests held by all Members on that date. "Manager" "shall be the person or Entity selected as manager pursuant tOARTICLE m. The initial Manager shall be Gravier Development, L.L.C. "Member" means any person executing this Agreement as of the date of this Agreement as a member, or hereafter admitted to the Company as a member as provided in this Agreement. and shall have the same meaning as the term "memfler"ililderthe.A:ct.but does ". n , not include any person who has ceased to be a member in the Company. "Operating Agreement" shall mean this Agreement. "Percentage Interest" of a Member shall mean the percentage set forth opposite the name of such Member under the column "Percentage Interest" in Exhibit A hereto, as such percentage may be adjusted from time to time pursuant to the terms hereof. "Regulations" means the income tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Transfer" shall have the meaning assigned to it in Section 6.1 hereof. Section 1.5 Company Purpose. The purposes of the Company shall be to engage in any activities permitted under the Act. The Company may exercise all powers reasonable or necessary to pursue such purposes. ARTICLE II MEMBERS, MEMBERSHIP INTERESTS Section 2.1 Names, Addresses, Initial Capital Contributions and Pe~ge Interest of Members. The Members, their respective addresses, their initial Capital Contributions to the Company, and their respective Percentage Interest in the Company are set forth in Exh1bit A, attached hereto and made a part hereof. 3 {N0788013.1} ....Section 2.2 Form of Contribution. (a) Each Member's initial Capital Contnbution is descnbed on Exhibit B attached hereto, receipt of which is hereby acknowledged by the Members. The Agreed Value of each Member's Capital Contribution is set. forth opposite such Member's name on Exlnbit A attached hereto. No Member shall be required to make any Capital Contnbutions to the Company other than the Capital ContrIbutions required to be made by such Member under this Section 2.2. (b) No interest shall be paid on any Capital Contnbution. (c) No Member shall have the right to withdraw his Capital Contnbution or to demand and receive property of the Company or any distribution in return for his Capital Contribution or the right or obligation to. cootnbuteadditionalH capital, except as may be specifically provided in this Agreement. Section 2.3 Member Loans or Services. Loans or services by any Member to the Company shall not be considered contn1mtions to the capital of the Company. Section 2.4 Admission of Additional Members. The Managers may admit to the Company additional Members who will participate in the profits, losses, available cash flow, and ownership of the assets of the Company on such ..terms as are determined by the Manager and approved by a Majority of the Members. Such additional Members shall be allocated gain, loss, income or expense by such method as is provided in this Agreement and as may be permitted by Section 706 of the Code. Section 2.5 Limitation on Liability. '. No Member shall be liable under a judgment, decree, or order of the court, or in any other manner, for a debt, obligation or liability of the Company. No Member shall be required to loan any funds to the Company. No Member shall be required to make any contnbution to the Company by reason of any negative balance in his Capital Account, nor shall any negative balance in a Member's'.Capital Account create any liability on the part of.the Member to the Company, any other Member or any third party. Section 2.6 No State Law Partnership. The Members intend that the Company not bea partnership (includfug, without limitation, a partnership in commendam) or joint venwre, and that no Member be a partner or joint venturer of any other Member, for any purposes other than federal and state tax purposes, and this Agreement shall not be construed to suggest otherwise. 4, {N07880is.l} ( , , . - ARTICLE ill MANAGEMENT AND CONTROL OF BUSINESS Section 3.1 ,Overall ManagementVested in Managers. Except as expressly provided otherwise herein, management of the Company shall be vested in a Manager selected by a Majority of the Members. A Manager need not be a Member. Initially, the Manager shall be Gravier Development, L.L.C. If a Manager dies, resigns, or ~omes disabled, a successor Manager shall be appointed by a Majority of the ' Members. A Mariager may be removed and a successor appointi:d at any tiriie"""6Y a Majority of the Members. Section 3.2 Powers of the Managers. (a) The manager of the Company as defined in the Act shall be--the Manager- selected and removed as provided in Section 3.1. The Manager shall have, the full power and authority to manage and act on behalf of the Company as provided in this Agreement. The Manager, acting alone, may exercise any power granted UDder this Agreement. The Manager shall have the full and complete duty and right to manage and control, and, within its discretion, shall make all decisions and take any necessary or appropriate action in connection with the Company's business whether or not in the ordinary course of business. Without limirine the ManageT's poWeT or ~mMrity llooer thi!< Agreement or t.he Act, the Manager may, without obtaining consent or approval of the Members, take the following actions if, as, and when it deems any such action to be necessary, appropriate or advisable, at the sole cost and expense of the Company and whether or not such ~ actions are in the ordinary course of the Company's business: (i) Buy, acquire, sell, alienate, dation, lease, convey, exchange, agree to sell or buy, dispose of, manage, lease or operate all or any portion of the real or immovable property, personal or' movable property, whether tangible, intangible, corporeal or incorporeal, including all property now owned or hereinafter acquired by the Company, whether now or in the future, for such consideration as the Manager may deem appropriate, including for cash, credit, a combination of both, an exchange of property rights, or in consideration for an interest in a corporation, joint venture, partnership or limited liability company witb- such acts to contain such terms and conditions as it may deem necessary, proper and/or advisable; "" (ii) Borrow any sum or SUIDS of monies and incur obligations, whether secured or unsecured, from any bank, financial institution, corporation, person or entity, including, but not limited to, borrowings from the Manager or any affiliate of the Manager, and to guaranty or endorse the 5 {N0788013.1} , J . -., debts and obligations of any person or entity, all to be on. sUch terms and conditions and in such amoUDtsand to contain such rates of interest and repayment terms as the Manager may deem necessary; from time to time make, execute and issue promissory notes and other negotiable or non.. negotiable instruments, continuing guaranties or' evidences of indebtedness, loan agreements and letters of credit, 'all to be on such terms and conditions and to contain such rates of interest and repayment terms as the Manager may deem necessary; andprepay, in whole or in part, refinance, increase, modify, consolidate or exteDd any debt, obligation, mortgage or other security device, on such terms as the Manager may deem necessary; (ill) Assign, 'pledge, mortgage or grant security interests in or otherwise encumber all or any portion of the realor--immovable'-Hpersonal or ----- movable or tangible or intanglole property of the Company and execute and bind the Company (or any partnership wherein the Company is a general partner or limited partner or any limited liability company wherein the Company is a manager or member) on any mortgage, assignment, security agreement, financing statement, pledges or any other document creating such encumbrances to secure the obligations of the Company (or of any partnership wherein the Company is a general partner or limited partner or of any limited liability company wherein the Company is a manager or member) or any other person or entity with such documents to contain the usual and customary security clauses, including without limitation a confession of judgment, waiver of appraisal and pact de non alienando, all upon such terms and conditions as the Manager may deem proper; (iv) Acquire and enter into any contract of insurance which the Manager deems necessary and proper for the protection of the Company, for the conservation of the Company's assets, or for any purpose convenient or beneficial to the Company; (v) Employ from time to time, on behalf of the ComPany, individuals (including employees of the Manager, the Members, or any of their affiliates) on such terms and for such compensation as the Manager shall determine; (vi) Make decisions as to accounting principles and elections, whether, for book or tax puIpOses (and such decisions may be different for' each purpose) ; 6 {N0788013.1} c (vii)' Open checking and savings accounts, in banks or similar' finaDciai institutions, in the name of the Company, and deposit cash in and withdraw cash from such accounts; (Viii) Set up or modify record keeping, billing and 'accounts payable " accounting systems; (ix) Adjust, arbitrate, compromise, sue or defend, abandon, or otherwise deal with and settle anY and all claims in favor of....eE-agaiDst the Company, as the Manager shall, in its sole discretion, deem. proper; (x) Enter' into,mak:e, perform and carry out all types of contracts, leases, and other agreements, and amend, extend, or modify any contract, lease, or agreement at any time entered into by the Company;~- (xi) Execute, oil behalf of and in the name of the Company, any and all contracts, leases, agreements, instruments, notes, certificates, titles or other documents of any kind or nature as deemed necessary and desirable by the Manager; (xii) Enter into joint ventures, partnerships or limited liability companies on behalf of the Company, cause the Company to become a shareholder in a corporation and act on behalf of the Company as a shareholder, partner, member or manager and execute any and all acts and agreements in connection therewith, all upon such terms and conditions as the Manager shall, in its sole discretion, deem proper; (xiii) Qualify the Company to do business in any state or locality; establish a place of business and designate a registered agent in such state or loCality, and execute such documents as may be necessary for such qualification; and (xiv) Do all acts necessary or desirable to carry out the business for which the Company is formed or which may facilitate the Manager's exercise of its powers hereunder. The Manager may use the power and authority granted under this Agreement (i) to purchase, lease or otherwise acquire property from, (ii) to sell, lease or otherwise dispose of property to or (ill) to use or encumber Company assets, credit and other properties (including assets, credit and other properties of any entity in which the Company has an interest) in furtherance of any activities or purposes of, a Member Or an affiliate of a Member whether or not the Company 'benefits from such purchase, sale, lease, disposition, use or encumbrance. Such purchase, sale, lease, disposition, use or encumbrance of Company aSsets, credit 7 , {N0788013.1} ( .. or other properties shall not be a breach'ofany fiduciary obligallbn.'6wed to the Members and shall be within the purposes of the Company. '(b) The Manager may employ a competent person to bean employee of the Company who 'shall be responsible' for: authenticating the records of, the Company, including keeping correct and complete books of account which show accurately at all time the financial condition of the Company; safeguarding all funds, notes, securities, and other valuables which may from time to time come into.possession of the Company; and depositing all funds of th~ompany with such depositories as the Manager shall ,designate; Such 'employee shall have such other duties as the Manager may from time to time prescribe, but under no circumstances shall such employee have any of the rights, powers, responsibilities or duties of a Manager or Member of the Company as prescn'bed herein or by law .__ ___ ___. _ (c) Every contract, deed, mortgage, lease and other instrument executed by the Manager shall be conclusive evidence in favor of every person relying thereon or claiming thereunder that at the time of the delivery thereof (i) the Company was in existence, (ll) neither this Agreement nor the Articles had been amended in any mannp.T so as to restrict the delegation of authority to the Manager, and (ill) the execution and delivery of such instrument was duly authorized by the Manager. Any person may always rely on a certificate addressed to him and signed by the Manager hereunder: (i) as to who are the Members of the Company; (ll) as to the existence or non-existence of any fact which constitutes a condition precedent to acts by the Manager or in any other manner germane to the affairs of the Company; (ill) as to who is authorized to execute and deliver' any instrument or docmnent of the Company; (iv) as to the authenticity of any copy of the Articles, this Agreement, amendments thereto or any other document relating to the conduct of the affairs of the Company; (v) as to any act or failure to act by the Company; or (vi) as to any other matter whatsoever involving the Company. Section 3.3 Limitation on Management. Notwithstanding the foregoing provisions of Section 3.1 and Section 3.2 above, the authority of the Manager shall be limited to the extent provided in this Section 3.3. Except by 8 {N0788013.1} ( the consent of the Manager and a Majority of the Members no act shall' be taken, sum expended, decision made or obligation incurred by the Company with respect to a matter within the scope of any of the major decisioilS enumerated below (the "Major Decision"). The Major Decisions shall include (i) any matter which could result in a change in the amount or character of the Company's contributions to capital, (ii) a change in the character of the business of the Company, (ill) the dissolution and winding up of the Company; (iv) a merger of the Company, or (v) the amendment of the Articles or this Agreement. Section 3.4 Manager Compensation. The Manager may receive such compensation as shall be determii1ed by the Manager from time to time. Section 3.5 Indemnification of Manager. (a) Except to the extent such indemnification may be prohibited by law, the Company, its receiver, or its trustee shall indemnify, hold harmless, and pay all costs, expenses, liabilities, judgments and claims against the Manager relating to any liability or damage incurred or suffered by the Manager by reason of any act performed or omitted to be performed (but not constituting willful misconduct, an intentional violation of this Agreement or gross negligence) by the Manager or its agents or employees in connection with the Company's business, including reasonable attorneys I fees and ';ApCii5e5 iocurred by the Manager in connection with the defense of any claim or action based on any such act or omission (which attorneys' fees and expenses shall be paid as incurred upon receipt by the Company of an undertaking to repay such amounts in the event the Manager shall be adjudicated guilty of or liable for gross negligence, an intentional breach of this Agreement or willful misconduct in connection with the performance of its duties as Manager to the Company). (b) In the event any Member shall bring a legal action against the Manager, including a Company derivative suit, the Company shall indemnify, hold harmless, and pay all costs, expenses, liabilities, judgments and claims of the Manager, including but not limited to reasonable attorneys' fees and expenses incurred in the defense of such action (which fees and expenses shall be paid as incurred upon receipt by the Company of an undertaking to repay such amounts in the event the Manager shall be adjudicated guilty of or liable for gross negligence, an intentional breach of this Agreement or wi1l.ftiilnisconduct in connection with the perfoIIJl3.IlCe of its duties as Manager to the Company). For purposes of this Section 3.5, the terms "willful misconduct" or "gross negligence" shall include but not be limited to acts of fraud and intentional breaches of fiduciary duty. ' (c) The Company shall indemnify, hold harmless, and pay all expenses, costs or liabilities of the Manager which (or who) for the benefit of the COmpany makes ... 9 {N0788013.1} ( '-. . .... . . ".C""'," any deposit, acquires any option, makes any payment, or assumesan:Yobligation in connection with any property proposed to be acquired by the COIlJpany and which (or who) suffers any financial loss as a result of such action. .' (d) Except ,as otherwise provided herein, any indemnification required hc:rein to be made by the Company shall be made promptly following the fixing of any loss, , liability, or damage incurred or suffered. If, at any time, the Company has , insufficient funds to provide such indemnification as herein provided, it shall provide such indemnification if and as the Company generates .sufficient funds, and prior to any distrIbution to the Members. . Notwithstanding the foregoing provisions of this Section 3.5, the Manager shall not be indemnified by the Company from any liability for actions or omissions that constitute willful misconduct or gross negligence it being understood; however; that his theintent of the parties to this Agreement to require the Company to indemnify the Manager against costs, expenses, liabilities, judgments and claims incurred because such person was the Manager of the Company to the fullest extent permitted by law. Section 3.6 Indemnification of Members. Except to the extent such indemnification may be prohIbited by law, the Company, its receiver, its trustee and the Manager shall indemnify, hold harmless and pay all costs, expenses, liabilities, judgments and claims against the Members relating to any liability which such Member may have as a result of actions of the Manager pursuant to this Agreement, including reasonable attorneys' fees and expenses incurred by a Member in connection with the defense of any claim or action based on any such act of the Manager, which attorneys' fees and expenses shall be paid as incurred. Section 3.7 Reimbursement of Expenses. The Manager or any Member shall be entitled to reimbursement from the Company of all expenses approved by the Manager, reasonably incurred and properly advanced by the Manager or such Member on behalf of the Company. Section 3.8 Other Activities. The Members hereby recognize and agree that the Manager or ariy"-Member may engage in any other business, venture, undertaking or other commercial or investment activity individually or with others without permitting the Company or any of the Members to , participate therein, and may engage in any commercial or investment activity which may be in direct or indirect competition with any business or investment activity of the Company regardless of the damage which such activity thereby causes to the Company, without breaching any duty the Manager or Members may have to the Company or to the Members. 10 {N0788013.1} ( (a) Meeting~ of the Members may be called by any Member or by the Manager, upon notice stating the date, time, and place of the' meeting 'and, ' when required,. by law, a description of the purposes for which the meeting is called, delivered or mailed to each Member at such address as appears in the records of the ' Company. Such notice shall be mailed at least ,ten, but not more than sixty, days before the date and time of the meeting. A Member may waive notice of any.me.eting, before or after the date of the meeting, by deli.3tiPg a signed waiver to the Coinpany for inclusion in the minutes of the Company. A Member's attendance at any meeting, in person or by proxy (i) waives objection to lack of notice or defective notice of the meeting, unless such Member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (ii) waives objection to consideration of a pl!rticular znatter __ ' at the meeting that is not within any purposes described in the meeting notice, unless such Member objects to considering the matter when it is presented. Section 3.9 Meetingsof the Members. (b) A Member may appoint another Member as his proxy to vote or otherwise act for such Member pursuant to a written appointment form executed by such Member. An appointment of proxy is effective when received by the Company. A proxy appointment is valid for eleven months unless otherwise expressly stated in the appointment form. (c) At any meeting of the Members and at any time consent of the Members is required, each Member is entitled to vote based on the Percentage Interest that the Member holds. Assignees may not vote with respect to any Percentage Interest until the Assignee is admitted as a Member with respect to such Percentage Interest pursuant to Section 6.4. At any meeting of the Members, presence of a Majority of the Members constimtes a quorum. Unless otherwise provided, action on a matter is approved if it receives approval by at least a majority of the votes, based on Percentage Interest, actually cast by all Members present and voting in person or by proxy . (d) Any action required or permitted to be taken at a meeting of the Members may be taken without a meeting if the action is taken by such Members as may be required by this Agreement or the Act to take such action. The action must be evidenced by one or more written consents descnoing the action to be taken, signed by such Members as may be required by this Agreement or the Act to take such action and delivered to the Company for inclusion in the minutes. (e) Any or all Members may participate in any meeting of the Members by, or through the use of, any means of commll1)ication by which all such Members participating may simultaneously hear and communicate with each other during the meeting. A Member so participating is deemed to be present in person at the meeting. 11, {N0788013.l} c ) (f), At any meeting of the Members, the Members shall appoint a person'to preside at the meeting and a person to act as secretary of the meeting. The 'secretary of the meeting shallpiepare minutes of the meeting which shall be placed in the minute books of the Company. ARTICLE IV ACCOUNTING AND RECORDS Section 4.1 Records and Accounting. The financial and tax books and records of the Company shall be kept, and the financial position and the results of its operations recorded, in accordance with the method of accounting chosen by the Manager. The books and records, of the Company shall reflect all Company transactions and shall be appropriate and adequateforuthe Company-'s-business. -The- Fiscal Year of the Company for financial reporting and for federal income tax purposes shall be the calendar year. Section 4.2 Access to Accounting Records. All books and records of the Company shall be maintained at any office of the Company or at the Company's principal place of business, and each Member, and his duly authorized representative, shall have access to them at such office of the Company and the right to inspect and copy them at reasonable times. Section 4.3 Annual and Tax Information. The Manager shall use its best efforts to cause the Company to deliver to each Member within 45 days after the end of each fiscal year all information necessary for the preparation of such Member's federal income tax return. The Manager shall also use its best efforts to cause the Company to prepare, within 60 days after the end of each fiscal year, a financial report of the Company for such fiscal year, contllining a balance sheet as of the last day of the year then ended, an income statement for the year then ended, a statement of cash flow, and a statement of reconciliation of the Capital Accounts' of the Members. Section 4.4 Accounting Decisions. All decisions as to accounting matters, except as otherwise specifically set forth herein, shall be made by the Manager. The Manager may rely upon the advice of theiracconntllnt!l as to whether such decisions are in accordance with accounting methods followed for federal income tax pUrposes. Section 4.5 Federal Income Tax Elections. The Manager, in its sole discretion. may make all elections for federal income tax purposes. 12 {N0788013.1 } ( ARTICLE V ALLOCATIONS; CAPITAL ACCOUNTS AND DISTRIBUTIONS 'Section 5.1 Allocations. Except as otherwise provided in and subject to the provisions of this Agreement and Exhibit C attached hereto and made part hereof, net losses incurred by the' Company and net profits from operation of the business of the Company (including, gain or'loss from the sale, exchange or dispo~ition of all or'any portion of the assets of the Company) ~ll be divided among arid borne by the Members in accordance with each Member's Percentage Interest as set forth on Exhtbit A. If losses are reallocated under ExhIbit C because of a deficit in a Member's Adjusted Capital Account Balance, subsequent allocations of profit and losses shall be made so that, to the extent possible, the net amount allocated pursuant to this Section 5.1 equals the net amount that would have been all~ted to"~~h ~emb~ if no~~_~ocation , had occurred. Section 5.2, Capital Accounts. Separate Capital Accounts shall be rnllintllined for each Member ("Capital Accounts") in accordance with this Section 5.2 and the principles set forth in Exhtbit C attached hereto and made part hereof. The Capital Account of each Member shall represent such Member's interest in the capital of the Company and which, as of any particular date, shall have a balance pmlll! to thp ~im of ~Il'h M..mhPT'~ ;n;t;lll ('lln;tlll {'ontnnnrion to th,. ('nmnllnv nJn~ (,,) th,. -""].-- -- -- -- -- ---- -.----... .. -- --r- --------- ...- -- -----r-.1 r"'- ,-, -- sum of all additional Capital Contributions made by such Member, any profits credited to such Member's Capital Account in the manner herein provided, and any other items in the nature of income or gain that are allocated pursuant to Section 5.1 or Exhibit C, and minus (b) all distrIbutions made to, or withdrawals made by, such Member, any losses debited to such Member's Capital Account in the manner herein provided, and any other items in the nattlre of expenses or losses that are allocated pursuant to Section 5.1 or Exlubit C. The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Section 1.704-1(b) of the Regulations, and shall be interpreted and applied in a manner consistent with such Regulations. If the Manager shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto, are computed in order to comply with such Regulations, the Manager may make such modification. The Manager shall adjust the amounts debited or credited to Capital Accounts with respect to (a) any property contributed to the Company or distributed to the Members, and (b) any liability that is secured by ,such contnbuted or distnbuted property or that is assumed by the Company or the Members, in the event the Manager shall determine either such adjustment is necessary or appropriate pursuant to Section 1.704-1(b)(2)(iv) of the Regulations. Property contnbutions or distrIbutions shall'be reflected in the Capital Accounts at fair market value (net of liabilities) as determined by the Manager. Also, in the event the values of Company assets are adjusted as permitted by the Regulations, the Capital Accounts of all Members shall be adjusted in accordance with Section 1.704-1(b)(2)(iv)(f) of the Regulations or Section 1.704-1(b)(2)(iv)(m) of the Regulations, as applicable, to reflect such 13 {N0788013.1} ( . . aggregate net adjustment. The Manager also shall make any adjrlstments or modificatioris as necessary or appropriate (a) to maintain equality between the Capital Accounts and the amo\lnt of Company capital reflected' on the Company's balance sheet" as 'computed for book purposes, in accordance with Section 1.704-1(b)(2)(iv)(q) of the Regulations, or (b) in the event unanticipated events might otherwise-cause this Agreement not to comply with Section '1 ~704- ' 1(b) of the Regulations. Section 5.3 Distnbutions. -- The Manager may distrIbute cash or p,roperty at any time to the Members in accordance with ,their Percentage Interest. Notwithst:mrline the previous sentence, however, no cash or property shall be distnbuted to any Member if the effect thereof would be to create a deficit in the Member's Capital Account balance or increase the deficit in the Capital Account of such Member below the sum of (a) the amount (if ll!lY) y;J:1il:!1.such M~1l!~jsrequire<i toc()ntribute . to the Company and (b) said Member's share of the 'gain which the Company would recognize upon the sale of its property for an amount equal to the balance of the nomecourse debt encumbering it, and such cash or property shall be retained by the Company and shall be distributed to the Member at the earliest time or times possible when such distrIbutions will not cause such a deficit or increase such a deficit in the Member's Capital Account balance. ARTICLE VI CHANGES IN MEMBERS Section 6.1 Transfers of Interests. (a) With the written consent of the Manager, a Member may sell, exchange, mortgage, pledge or otherwise transfer CTransfer") any portion of an Interest in the Company. , (b) Without the written consent of the Manager, a Member shall have no power or authority to Transfer an Interest. . Section 6.2 Death, Interdiction, Withdrawal, etc. of a Member. A Member does not have the right or power to withdraw from the Company as a Member. If a Member dissolves, terminates, becomes bankrupt, dies, or is adjudged to be incompetent by a court of competent jurisdiction, the Member's membership ceases. In any such case, and in any other case in which a Member's membership ceases, the furmer Member or such Member's executor, administrator, guardian, conservator, or other legal representative shall be treated as an Assignee of such Member's Interest and shall have no right to immediate valuation or payment of the affected Interest. 14 {N0788013.1} l , Section 6.3 Security Interest. The granting of a security interest in or against any or all of a Member's Interest shall be made only with the Written consent of the Mariagerwhich consent may regiven or withheld in the sole discretion of the Manager. The Interest of a Member or assignee cannot be Transferred to satisfy a creditor without complying with Section 6.1(a). Section 6.4 Rights of Assignee; Admission of Substinrte Members. , - Any person acquiring an Interest in the Company by a Transfer governed by Section 6.1(a) or by any other means shall not become a Member with respect to the acquired Interest unless and until he is admitted as a Member with respect to the acquired Interest in accordance with this Section 6.4, but shall be treated only as an Assignee of the acquired Interest. An Assignee, shall not be entitled to immediate.vaJ.l:Iation ,~, .p"a)'ment .~!l1.respect to. the transferred Interest, but shall only be entitled to receive such distribution or distnbutions to which the assignor was entitled and only to the extent of the assignment. An Assignee shall be allocated the share of Company capital, profits, depreciation'deductions, losses and available cash attributable to the Interest transferred to him. An Assignee of an Interest in the Company shall not become a Member with respect to the acquired interest, or participate in, the management of the Company with respect to the acquired interest, without the written consent of the Manager (which consent may be withheld in such Manager's sole discretion) and the Assignee executes an instrument satisfactory to the Company accepting and adopting the terms and provilSiollS of i.hilS Agn:erru:nt. ARTICLE VII DISSOLUTION Section 7.1 Events Causing Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the first to occur of the following: (a) December 31, 2050, unless continued prior to such date by the written unanimous consent of the Members and by amendment to the Articles of Organization. (b) The unanimous consent of the Members. (c) The entry of a decree of judicial dissolution. Section 7.2 Winding Up. Upon dissolution, the Manager shall wind up the Company's affairs. The liquidation shaIl take place without the appointment of a liquidator. Gains on the sale or other disposition of Company assets (after taking into account the variation between the basis of property 15 {N078801 3. I} ( contributed to the Company and its fair market value at the t:nne' ii contribution under s~cti()h 704(c)of the Code) shall be allocated among the Members and credited to their Capital Accounts in the order ,and ratios set forth in ARTICLE V. Losses on the sale or other disposition of Company assets shall be divided among the Members and charged against their Capital Accourits in the ratios in which they share Losses under ARTICLE V. Section 7.3 Distn'bution of Assets. Upon the ~g up of the Company, the Assets shal,l be distn'buteLill.. accordance with Section 7.4 and Section 7.5. " , Section 7.4 Distributions in Kind. If the Manager elects to distribute any asset of the Company (other than cash) to some or all of the Members in kind, an appraisal of the fair market value of each such assets shall be --- --- obtained by the Manager from an appraiser who is licensed to appraise property of the same nature in the locality in which it is situated. For purposes of effecting the liquidating distn'butions, for each of such assets each Member's Capital Account balance shall be adjusted as if such asset were sold at its fair market value and any gain or loss were allocated under ARTICLE V. Section 7.5 Distributions. Each Member shall receive on liquidation (within 90 days after the liquidation of the Company or by the close of the Company's taxable year in which its dissolution occurs, whichever is later) cash or other assets (both valued at their appraised value, as determined above, net of any liabilities which encumber them at the time of distn'bution) in an amount equal to his positive Capital Account balance as adjusted pursuant to the provisions of Section 7.4. No Member shall receive a distn'bution in kind if the effect thereof is to create or increase a deficit in his Capital Account balance (after adjustment pursuant to Section 7.4) unless he first contn'butes cash to the Company in an amount equal to the deficit balance which would otherwise remain after said distn'bution. On liquidation of a Member's entire interest in the Company he shall receive an amount equal to his positive Capital Account balance (adjusted by his share ofunr~li7ffi appreciation or depreciation in the fair market value of the Company's assets). ARTICLE VIII MISCELLANEOUS Section 8.1 Specific Performance. The parties acknowledge that their obligations hereunder are unique, and that it would be extremely impracticable to measure the resulting damages if any party should default in its obligations under this Agreement. Accordingly, in the event of the failure by a party to perform its obligations hereunder which failure constitutes a breach hereof by such party, the nondefaulting parties may, in addition to any other available rights or remedies, sue in equity 16 {N0788015.1} ( for Specific performance and, in connection with any such suit, the parties each expressly waive the defense therein that the plaintiff has an adequate remedy at law. Section 8.2 Complete Agreement. . ' This Agreement' and the Articles constitute the complete and exclusive statement of ' agreement among the Members with respect to the subject matter hereof. This Agreement and the Articles replace and supersede all prior agreements made by apd among the Members or any of them. This.Agreement and the Articles supersede all prior written an4..2.fal. statements and no representation, statement, or condition or w~ not contained in this Agreement or the Articles will be binding on the Members or have any force or effect whatsoever. Section 8.3 Governing Law. This Agreement and the' rightsuofthe--parties hereunder will-be governed by;--- ' interpreted, and enforced in accordance with the laws of Florida applicable to agreements to be performed entirely in Florida. Section 8.4 Binding Effect. Subject to the provisions of this Agr~nt relating to transferability. this Agreement will be binding upon and inure to the benefit of the Members, and their respective distributees, successors and assigns. Section 8.5 Terms. .",. Common nouns and pronouns will be deemed to refer to the masculine, femiuine, neuter, singular and plural, as the identity of the person or persons, firm or corporation may in the context require. Any reference to the Code or other statutes or laws will include all amendments, modifications, or replacements of the specific sections and provisions concerned. Section 8.6 Headings. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement. Section 8.7 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenfOrceable under the present or future laws effective during the term of this Agreement, such provision will be fully severable; this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement; and the renuiining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17 {N0788013.1} ( Section 8.8 Multiple Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original but all of which will constitute one aDd the same instrument. However, in making proof hereof it will be necessary to produce only one copy hereof signed by the party to be charged. Section 8.9 Additional Documents and Acts. . --- Each Member' agrees to execute and deliver such additional documents aDd instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated hereby. Section 8.10 No Third Party Beneficiary: This Agreement is made solely and specifically among and for the benefit of the parties hereto, and their respective successors and assigns subject to the express provisions hereof relating to successors and assigns, and no other person will have any rights, interest, or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise. Section 8.11 References to this Agreement. Numbered or lettered articles, sections and subsections herein contained refer to articles, sections and subsections of this Agreement unless otherwise expressly stated. Section 8.12 Notices. Any notice to be given or to be served upon the Company or any party hereto in connection with this Agreement must be in writing and will be deemed to have been given aDd received when delivered to the address specified by the party to receive the notice. Such notices will be given to a Member at the address specified in Exlnbit A hereto. Any Member or the Company may, at any time by giving five days' prior written notice to the other Members and the Company, designate' any other address in substitution of the foregoing address to which such notice will be given. Section 8.13 Amendments. _ Except as specifically provided in this Agreement, all amendments to this Agreement and the Articles must be in writing and approved by the Manager and a Majority of the Members. ' 18 {N0788013.1} ( Section 8.14 Title to Company Property. Legal title to all property of the Company will be held and conveyed in the name of the Company. IN WITNESS WHEREOF, the undersigned have executed thls Agreement effective as of October 6, 1999, the date the Articles of Organization of the Company are accepted for filing by the Florida Secretary of State. MEMBERS GRAVIER DEVELOPMENT, L.L.C. nn.'~ By: SOEUR ET FRERE, INC. By, // /C&- ~ MAKO CAPITAL, L.L.C. ;&-- / By: 19 {N0788013.1} l EXIDBIT A Member Name! Address Agreed Value of Interest in Property' Described on Exhibit B Gravier Development, L.L.C. 601 Poydras Street;: Suite 2011 New Orleans, LOuisiana 70130 $ Soeur et Frere, Inc. 601 Poydras Street, Suite 2011 , New Orleans, LOuisiana 70130 d _.--- .- .---- $ - , ' _.__~_.___.. ___on Make Capital, L.L.C. 601 Peydras Street, Suite 2011 New Orleans, LOuisiana 70130 $ TOTAL 20 {N0788013.1} Percentage Interest 60% 20% 20% 100% . Member ( EXHIBIT B Initial Capital Contributions " Property Cash Gravier Development, L.L.C. Soeur et Frere, Inc-, ' Mako Capital, L.L.C. {N0788013.1} Cash Cash 21 \ Fair Market Value $- $ $- c , . EXHIBIT'C TAX ALLOCATIONS For purposes of interpreting and implementing ARTICLE V of the Operating Agreement (the "Agreement") of Pelican Development, L.L.C., the following rules shall apply and shall be treated as part of the terms of the Agreement: A. Special Allocation Provisions. 1. For purposes of determining the amount of gain or loss to be allocated 'pursuant to ARTICLE V of the Agreement, any basis adjustments permitted pursuant to Section 743 of the Code shall be disregarded. 2. Unless otherwise determined by the Manager in accordance with the provisions of Section 706 of the Code, income, loss, deductions and credits shall be allocated to the Members in accordance with the portion of the year during which the Members have held their respective interests and all items of income, loss and deduction shaH be considered to have been earned ratably over the period of the fiscal year of the Company, except that gains and losses arising from the disposition of assets shall be taken into account as of the date thereof. 3. Notwithstanding any other provision of the Agreement, to the extent required by law, income, gain, loss and deduction attributable to property contributed to the . Company by a Member shall be shared among the Members so as to take into account any variation between the basis of the property and the fair market value of the property at the time of contribution in accordance with the requirements of Section 704(c) of the Code and the applicable Regulations thereunder as more fully described in Part B hereof. 4. Notwithstanding any provision of the Agreement to the contrary, in the event the Company is entitled to a deduction for interest imputed under any provision of the Code on any loan or advance from a Member (whether such interest is currently deducted, capitalized or amortized), such deduction shall'be allocated solely to such Member. 5. Notwithstanding any provision of the Agreement to the contrary, to the , extent any payments in the nature of fees made to a Member are finally determined by the IRS to be distributions to a Member for federal income tax purposes, there will be--a-gross income allocation to such Member in the amount of such distribution. 6. (a) Notwithstanding any provision of the Agreement to the contrary and subject to the exceptions set forth in Section 1.704-2(t)(2)-(5) of the Regulations, ifthere is a net decrease in Partnership 1vfinimum Gain during any Company fiscal year, each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in Partnership Minimum Gain determined in accordance with Section 1.704-2(g)(2) of the 22 {N0788013.1 } c ,I . , ' Regulations. Allocations pursuant to the previous sentence shall be'made in proportion to the respective amounts required to be allocated to each Member pursuaDt thereto. The items to be so allocated shall be determined in accordance with Section 1.704-2(f) of the Regulations. This paragraph 6(a) is intended to comply with the minimum gain chargeback requirement in snch Section of the Regulations and sball be interpreted consistently therewith. To the extent permitted by such Section of the Regulations and for pmposes of this paragraph 6(a) only, each Member's Adjusted Capital Account Balance shall be determined prior to any other allocations pursuant to ARTICLE V of the Agreement with respect to such fiscal year and without regard to any net decrease-in Partner Minimum Gain during such fiscal year. (b) Notwithstanding any provision of the Agreement to the contrary, except paragraph 6(a) of this Exhibit and subject to the exceptions set forth in Section 1.704- 2(i)(4) of the Regulations, if there is a net decrease in Partner Nomecourse Debt Minimum Gain during ,any Company, fiscal-year, each Member who--has-a.share of the Partner Nonrecourse Debt Minimum Gain, determined in accordance with Section 1.704-2(i)(3) of the Regulations, shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in Partner Nomecourse Debt Minimum Gain, determined in accordance with Section 1.704-2(i)(5) of the Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Section 1.704- 2(i)(4) of the Regulations. This paragraph 6(b) is intended to comply with the minimum gain chargeback requirement in such Section of the Regulations and shall be interpreted consistently therewith. Solely for purposes of this paragraph 6(b), each Member's Adjusted Capital Account Balance shall be determined prior to any other allocations pursuant to ARTICLE V of the Agreement with respect to such fiscal year, other than allocations pursuant to paragraph 6(a) hereof. 7. Notwithstanrline any provision of the Agreement to the contrary, in the event any Members unexpectedly receive any adjustments, allocations or distributions described in Regulation Section 1.704-1 (b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704- 1 (b)(2)(ii)(d)(6), items of Company income and gain shall be specially allocated to such Members in an amount and manner sufficient to eliminate the deficits in their Adjusted Capital Account Balances created by such adjustments, allocations or distributions as quickly as possible. 8 . No loss shall be allocated to any Member to the extent that such allocation would result in a deficit in its Adjusted Capital Account' Balance while any other Member continues to have a positive Adjusted Capital Account Balance; in such event losses sball first be allocated to any members with positive Adjusted Capital Account Balances, and in proportion to such balances, to the extent necessary to reduce their positive Adjusted Capital Balances to zero. 9. Any special allocations of items pursuant to this Part A sball be taken into account in computing subsequent allocations so that the net amount of any items so 23 {N0788013.1 } c. . allocated and the profits, losses and all other items allocated to each such member p~t to ARTICLE V of the Agreement shall, to the extent possible, be equal to the net amount that would have been allocated to each such Member pursuant to the provisions of ARTICLE V of the Agreement if such special allocations had not OCCUlTed. 10. Notwithstanding any provision of the Agreement to the contrary, Nonrecourse Liabilities and Nonrecourse Deductions for any fiscal year or other period shall be specially allocated to the Members in accordance with the percentages set forth in Section 5.1. Allocations attributable to Exculpatory Liabilities shall be treated in the-same manner as allocations attributable to Nonrecourse Liabilities. 11. Notwithstanding any provision of the Agreement to the contrary, any Partner Nonrecourse Deduction for any fiscal year or other period shall be specially allocated to the Member who bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Section 1. 704-2(i) of the Regulations. B. Capital Account Adjustments and 704(c) Tax Allocations. 1. For purposes of computing the amount of any item of income, gain, deduction or loss to be reflected in the Members' Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination. recognition and classification for federal income tax purposes; provided, however, that: (a) Any deductions for depreciation, cost recovery or amortization (other than depletion under Section 611 of the Code) attributable to a Contributed Property shall be determined as if the adjusted basis of such property on the date it was acquired by the Company was equal to the Agreed Value of such property. Upon an adjustment to the Carrying Value of any Company property (other than property subject to depletion under Section 611 of the Code), any future deductions for such depreciation, cost recovery or amortization attributable to such property shall be determined as if the adjusted basis of such property was equal to the Carrying Value of such property immediately following such adjustment. (b) Any income, gain or loss attributable to the taxable disposition of any property (including any property subject to depletion under Section 611 of the Code) shall be determined by the Company as if the adjusted basis of such property as '(jf such date of disposition was equal in amount to the Company's Carrying Value with 'respect to such property as of such a date. (c) If the Company's adjusted basis in a depreciable or cost recovery property is reduced for federal income tax purposes pursuant to Section 50(c)(I) of the Code, the amount of such reduction shall, solely for purposes hereof, be deemed to be an additional depreciation or cost recovery deduction in the year such property is placed in service and shall be allocated among the Members pursuant to ARTICLE V of the Agreement. Any restoration 24 {N0788013.1} c. I , , of such basis pursuant to Section 50(c)(2} of the Code shall be allocated in the same manner to the Members to whom such deemed deduction was allocated. (d) The computation of all items of inCome, gain, loss and deduction shall be made by the Company and, as to those items descnOed in Section 705(a)(1)(B} or Section 705(a)(2)(B) of the Code, without regard to the fact that such itenis are not includible in gross income or are neither currently deductible nor capitalizable for federal income tax purposes. 2. A transferee of a Membership Interest will succeed to the Capital Account relating to the Membership Interest transferred. 3. Upon an issuance of additional Membership interests for cash or Contributed Property, the Capital-Accounts~fall-Members (and the CarryingVaIues of all Company properties) shall, immediately prior to such issuance, be adjusted (coDSistent with the provisioDS hereof) upward or downward to reflect any Unrealized gain or unrealized loss attnbutable to each Company property (as if such unrealized gain or unrealized loss had been recognized upon an actual sale of such property at the fair market value thereof, immediately prior to such issuance, and had been allocated to' the Members, at such time, pursuant to ARTICLE V of the Agreement). In determining such unrealized gain or unrealized loss attributable to the properties, the fair market value of Company properties shall be determined by the Managers using such reasonable methods of valuation as they may adopt. 4. Immediately prior to the distnbution of any Company property in liquidation of the Company or as consideration for an interest in the Company, the Capital Accounts of all Members (and the Carrying Values of all Company properties) shall be adjusted (consistent with the provisions hereof and Section 704 of the Code) upward or downward to reflect any unrealized gain or unrealized loss attnbutable to each Company property (as if such unrealized gain or unrealized loss had been recognized upon an actual sale of each such property, immediately prior to such distribution, and had been allocated to the Members, at such time, pursuant to ARTICLE V of the Agreement). In determining such unrealized gain or unrealized loss attributable to the properties, the fair market value of Company properties shall be determined by the Manager using such reasonable methods of valuation as it may adopt. 5. In accordance with Section 704( c) and the regulations thereunder, income, gain, loss and deduction with respect to any Contributed Property sha:lr,solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its Agreed Value. 6. In the event the Carrying Value of any Company asset is adjusted as described in paragraph 3 or 4 above, subsequent allocations of income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted 25 {N0788013.1} i \- basis of such asset for federal income tax purposes and its Carrying Value in the same manner as under Section 704(c) of the Code and the ReguIationsthereunder. ' . 7. Any elections or other decisions relating to such allocations shall be made by the Manager in any manner that reasonably reflects the purpose and intention of the Agreement. C. Definitions. For the purposes of this Exhibit, the following terms shall have the meanings indicated unless the context clearly indicates otherwise: "Adjusted Capital Account Balance" means the balance in the Capital Account of a Member as of the end of the relevant fiscal year of the Company, after giving effect to the following: (a) credit to such capital account any amounts the Member is obligated to restore, pursuant to the terms of the Agreement or- otherwise, or is deemed obligated to restore pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations, and (b) debit to such capital account the items descnl>ed in Sections 1.704- 1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations. . Agreed Value" means the fair market value of Contributed Property as agreed to by the contributing Member and the Company, using such reasonable method of valuation as they may adopt. .Carrying Value" means (a) with respect to Contributed Property, the Agreed Value of such property reduced (but not below zero) by all amortization, depreciation and cost recovery deductions charged to the Members' Capital Accounts with respect to such property, as well as any other charges for sales, retirements and other dispositions of assets included in a Contributed Property, as of the time of determination, and (b) with respect to any other property, the adjusted basis of such property for federal income tax purposes as of the time of determination. The Carrying Value of any property shall be adjusted in accordance with the principles set forth herein. "Contributed Property" means each Member's interest in property or other consideration (excluding services and cash) contnbuted to the Company by such Member. "Exculpatory Liability" means a liability of the Company that is not Secured by any specific property and that is recourse to the Company as an entity, but is nonrecourse to any Member. "Nonrecourse Deductions" shall have the meaning set forth in Section 1.704- 2(b)(1) of the Regulations. The amount of Nonrecourse Deductions for a Company fiscal year equals the excess, if any, of the net increase, if any, in the amount of Partnership Minimum Gain during that fiscal year over the aggregate amount of any distributions during that fiscal year of proceeds of a Nomecourse Liability that are allocable to an increase in Partnership Minimum Gain, determined according to the provisions of Section 1.704-2(c) of the Regulations. : 26 {N0788013.1} c "Nomecourse Liability" shall have the meaning set forth in Section, 1.704- 2(b)(3) of the Regulations. "Partner Nonrecourse Debt Minimum Gain" means an amount, with respect to each Partner Nonrecourse Debt, determined in accordance with Section 1. 704-2(i) of the Regulations. "Partner Nomecourse Debt" shall have the meaning set forth in Section 1.704- 2(b)(4) of the Regulations. "Partner Nomecourse Deductions" shall have the meaning set forth in Section 1.704-2(i)(2) of the Regulations. The amount of Partner Nonrecourse Deductions with respect to a Partner N omecourse Debt for a Company fiscal year equals the excess, if any, of the net increase, if any, in: the amount of Partner Nonrecourse Debt Minimuin Gain attnbutable- to- such Partner Nonrecourse Debt during that fiscal year over the aggregate amount of any distributions during the fiscal year to the Member that bears the economic risk of loss for such Partner Nomecourse Debt to the extent such distributions are from the proceeds of such Partner Nonrecourse Debt and are allocable to an increase in Partner Nonrecourse Debt , Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Section 1. 702-2 (i)(2) of the Regulations. "Partnership Minimum Gain" shall have the meaning set forth in Sections 1.704- 2(b)(2) and 1.704-2(d) of the Regulations. For purposes of this Exhibit, all other capitalized terms will have the same definition as in the Agreement. 27 {N0788013.1} ( , FIRST AMENDMENT TO , OPERATING AGREEMENT OF PELICAN DEVELOPMENT, L.L.C. This First Amendment ("First Amendment") to the Operating Agreement of Pelican Development, L.L.C., a Florida limited liability company (the "Company") is entered into and shall be effective as of the 31st day of January, 2002 ("Effective Date") by and among Gravier Development, L.L.C. ("Gravier") as the Manager and a Member, Soeur....eLFrere, Inc. ("Soeur") as a withdrawing Member, Mako Capital, L.L.C. ("MaIm"), and St., George Investment, L.L.C. ("St. George"), a Louisiana limited liability company as an incoming Member. WHEREAS, the Company was formed as a Florida limited liability company under the laws of the State of Florida effective as of October 6, 1999; WHEREAS, Soeur and Mako have transferred their entire interest in the Company to St. George and Gravier bas transferred all but 1 % of its interest in the Company to St. George; WHEREAS, the parties hereto desire to consent to and recognize the transfer of such interest to St. George; WHEREAS, pursuant to the Operating Agreement for the Company dated October 6, 1999, as amended (the "Operating Agreement") the Members are authorized to amend the Operating Agreement; WHEREAS, such Members desire to amend the Operating Agreement as provided herein. ' ' ' NOW, THEREFORE, the parties hereto agree to amend the Operating Agreement of the Compim.y as follows: - 1. All capitalized terms used herein shall have the mellnings ascnl>ed to them under the Operating Agreement unless otherwise defined herein. II. The parties hereto hereby consent to the transfer by Soeur and Mako of their entire Interest in the Company to St. George and the withdrawal of Soeur and Milko as Members as of the Effective Date and the transfer by Gravier to St. George of a 59% Interest in the Company. Soeur and Mako acknowledge their withdrawal from" the Company as of the Effective Date and that they have no further interest in the Company or its assets. For purpose of Section 706 of the Code, the books of the Company shall be cloSed as of the Effective Date {N0787950, 1 } l . by the Manager for purposes of allocating income, gain, loss, deductions and credits to Soeur ' and MaIm. . m. As of the Effective Date, St. George hereby succeeds to the Interests of Soeur and Mako in the Company and to a 59% Interest in the Company from Gravier as reflected on Exhibit "A" as amended hereby. St. George agrees to be bound by the terms and conditions of the Operating Agreement. ,J IV. The parties hereto consent to the contribution by St. George to the capital of the Company of such amounL(as determineduby_St_ George) as may be necessary- to repay the Company's construction loan with Whitney National Bank or to complete construction of the Company's property. Any such amounts contributed shallbe added to St. George's Capital Account. v. Except as otherwise amended by this First Amendment, the terms and conditions of the Operating Agreement are hereby confirmed. IN WITNESS WHEREOF, the Members have executed this Agreement as of the date first written. MEMBERS: -GRA VIER DEVELOPMENT, L.L.C. By: 3(? t-b ST. GEORGE INVESTMENTS, L;b.C. By: as Partners, Inc., Manager By: .2 {N07s79SO.1} l . WITHDRAWING MEMBERS: SOEUR ET FRERE, INC. By, ti!--- / MAKO CAPITAL, L.L.C. By: $-- / 3 {N07879SO.1} -- r c' Member Name/Address EXHIBIT A Gravier Development, L.L.C. 601 Poydras Street; Suite 2011 New Orleans, Louisiana 70130 St. George Investments, L.L.C. 601 Poydras Street, Suite 2011 New Orleans, Louisiana--70130- _u TOTAL {N07879S0.1l 'i\greed Value of Interest in Property Described on Exln'bit B 4 - PerCettbge Interest 1% 99% 100%